Catchwords                         CATCHWORDS

ADMINISTRATIVE LAW - Judicial Review on the Grounds of Ultra Vires or Defective Exercise of Powers - executive request to investigate pursuant to statute - scope of investigation authorised - investigating body develops its own definition of subject matter.

ADMINISTRATIVE LAW - Rules of Natural Justice and Breach thereof - confidentiality - commitment to provide procedural fairness by the decision maker - opportunity to respond provided - allegations too general - risk to reputation.

ADMINISTRATIVE LAW - Rules of Natural Justice and Breach thereof - concerns expressed by applicant about inquiry procedures - reliance on advice from Attorney-General's Department and the Public Service Commissioner - good administration.

ADMINISTRATIVE LAW - Administrative Decisions (Judicial Review) Legislation - breach of natural justice - improper exercise of power - reviewable decision - final and operative.

DISCRIMINATION LAW - Commonwealth - Merit Protection and Review Agency - ministerial request to investigate - harassment - workplace harassment - Public Service Commission's Guidelines - management matters.

HIGH COURT AND FEDERAL JUDICIARY - Federal Court of Australia - availability of declaration - availability of declaration on cross-vesting from the Australian Capital Territory Supreme Court.

JUDGMENTS AND ORDERS - In General - confidentiality - obligation to provide reasons for decision - free political discussion - confidential annexure to judgment.

Administrative Decisions (Judicial Review) Act 1977, s5(1)(a);  s5(1)(e);  s6(1)(a)

Australian Capital Territory (Self-Government) Act 1988, s48A

Australian War Memorial Act 1980

Federal Court of Australia Act 1976, s50

Jurisdiction of Courts (Cross-Vesting) Act 1987, s4(2)

Merit Protection (Australian Government Employees) Act 1984, s4(1)

Ainsworth v Criminal Justice Commission (1992) 175 CLR 564

Arnotts Ltd v Trade Practices Commission (1990) 97 ALR 555

Attorney-General of Hong Kong v Ng Yuen Shiu [1983] 2 AC 629

Australian Broadcasting Commission v Parish (1980) 43 FLR 129

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321

Bond v Australian Broadcasting Tribunal (1988) 19 FCR 494

Burgundy Royale Pty Ltd v Westpac Banking Corporation (1987) 18 FCR 212

Commonwealth of Australia v John Fairfax & Sons Ltd (1980) 147 CLR 39

Edelsten v Health Insurance Commission (1990) 27 FCR 56

Formosa v Secretary, Department of Social Security (1993) 46 FCR 117

Greiner v Independent Commission Against Corruption (1992) 28 NSWLR 125

Kioa v West (1985) 159 CLR 550

New South Wales Aboriginal Land Council v Aboriginal and Torres Strait Islander Commission Federal Court of Australia, unreported, 30 August 1995

Queensland v Wyvill (1989) 25 FCR 512

Romeo v Asher (1991) 29 FCR 343

Ross v Costigan (1982) 59 FLR 184

Theophanous v Herald & Weekly Times Ltd (1994) 68 ALJR 713

Vredelco Food Industries Pty Ltd v Anti-Dumping Authority Federal Court of Australia, unreported, 22 November 1994

Yates Security Services Pty Ltd v Keating (1990) 25 FCR 1

BRENDON EWART WILLIAM KELSON and MICHAEL MATTHEW McKERNAN v ANNE FORWARD in her capacity as Director of the Merit Protection and Review Agency

No ACT AG 86 of 1994

FINN J

CANBERRA

6 OCTOBER 1995

Orders

IN THE FEDERAL COURT OF AUSTRALIA)

                                  )

AUSTRALIAN CAPITAL TERRITORY      )

                                  )    No. ACT AG 86 of 1994   DISTRICT REGISTRY                )

                                  )

GENERAL DIVISION                  )

                   BETWEEN:  BRENDON EWART WILLIAM KELSON

                                      First Applicant

                             MICHAEL MATTHEW McKERNAN

                                      Second Applicant

                       AND:  ANNE FORWARD in her capacity as                          Director of the Merit Protection                          and Review Agency

                                       Respondent

                           

                                    

                                       

                  

COURT:  FINN J.

PLACE:  CANBERRA

DATE:   6 October 1995

                      MINUTES OF ORDERS

THE COURT ORDERS THAT:

          (1)  The decision of the respondent reporting to the Minister Assisting the Prime Minister for Public Service Matters and setting out the results of the inquiry requested by the Minister of 16 August 1994, be quashed.

THE COURT DECLARES THAT:

          (1)  The respondent acted without authority in conducting the actual inquiry she undertook into the allegations made against the applicants.

          (2)  The respondent denied the applicants natural justice in putting the allegations to the applicants in the manner and in the form which she did, and in finalising her Report without providing them with a fair opportunity to respond to such of the allegations made against them as fell within the scope of the inquiry she was authorised to undertake.

          Note:     Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules

Reasons

IN THE FEDERAL COURT OF AUSTRALIA)

                                  )

AUSTRALIAN CAPITAL TERRITORY      )

                                  )    No. ACT AG 86 of 1994   DISTRICT REGISTRY                )

                                  )

GENERAL DIVISION                  )

                   BETWEEN:  BRENDON EWART WILLIAM KELSON

                                      First Applicant

                             MICHAEL MATTHEW McKERNAN

                                      Second Applicant

                       AND:  ANNE FORWARD in her capacity as                          Director of the Merit Protection                          and Review Agency

                                       Respondent

                           

                                    

                                       

                 

COURT:  FINN J.

PLACE:  CANBERRA

DATE:   6 October 1995

                      TABLE OF CONTENTS

The Parties and the Application.......................... 2

Confidentiality.......................................... 3

An Inquiry Initiated..................................... 5

The MPRA................................................. 8

The Progress of the Inquiry.............................. 9

"Workplace Harassment".................................. 27

The Subject(s) of Actual or Apparent Inquiry............ 35

Responding to the Allegations........................... 39

A Pattern of Concern.................................... 42

Findings are Made by the MPRA........................... 43

The Attacks Made on the Report and on Conduct Leading to it 44

The ADJR Act Claims..................................... 46

Denial of Natural Justice............................... 51

Inquiring Without Jurisdiction or Authority............. 55

Good Administration..................................... 58

A Declaration........................................... 61

The Relief to be Granted................................ 61

                    REASONS FOR JUDGMENT

The Parties and the ApplicationParties and the Application

     At the time of the events giving rise to this application Mr Kelson and Dr McKernan were respectively the Director and Deputy Director of the Australian War Memorial (the "AWM").  Mr Kelson's term of office expired at the end of 1994.  Ms Forward, the respondent, is the Director of the Merit Protection and Review Agency (the "MPRA").  Both the AWM and Mr Kelson's office, and the MPRA and Ms Forward's office are the creatures of statute.  These are the Australian War Memorial Act 1980 and the Merit Protection (Australian Government Employees) Act 1984 respectively.

     The application arises out of the manner in which the MPRA is alleged to have conducted an inquiry into workplace
harassment at the AWM at the request of, and for the purpose of reporting to, the Minister Assisting the Prime Minister for Public Service Matters.  The precise grounds of the application will be detailed below.  Suffice it to say here that relief in the event was sought by way of an order of review under the Administrative Decisions (Judicial Review) Act 1977 (the "ADJR Act") and by way of declaration.  Put in broad terms the essence of the applicants' complaints was that they were denied procedural fairness by the respondent and that the actual inquiry undertaken by the respondent was in significant degree without jurisdiction or authority. 

Confidentiality

     At the opening of the hearing before me the Report prepared by the MPRA was tendered.  The parties by consent sought and were granted an order under the Federal Court of Australia Act 1976, s50 forbidding publication of the Report until further order.  Given that the circumstances leading to the creation of the Report and the Report itself are subjects of challenge in these proceedings, and given the potential of the Report to impact upon the reputations of a range of individuals (not limited to the applicants) if matter contained in it was published, the case in my view was a clear one warranting such an order:  cf Australian Broadcasting Commission v Parish (1980) 43 FLR 129.

     There is, though, an issue as to the extent to which my own reasons for judgment should themselves by the instrument occasioning the impact to which I have referred, because of the manner in which I make reference to the Report in these reasons.  In light of the conclusions I have arrived at in the proceedings, it is proper that I take appropriate steps in these reasons to minimise the risk of that impact occurring.

     In saying this I am conscious that the proceedings are ones of some public interest and of media attention.  If the Report itself was unimpeachable it may well have been the case that its contents should be laid open to discussion by the community:  cf The Commonwealth of Australia v John Fairfax & Sons Ltd (1980) 147 CLR 39;  Theophanous v Herald & Weekly Times Ltd (1994) 68 ALJR 713 at 718.  But the Report is a fatally flawed one.  Reputation should not be put at risk by it.

     To reveal its substance, at least insofar as this bears on individuals caught up in the MPRA inquiry, would be to nullify one of the clear purposes for which these proceedings were brought.  While this Court should be slow to impede "political discussion" - cf Theophanous, supra, at 718 - it should not make itself an instrument of misinformation in that discussion, or of unfair prejudice to persons caught up in it.

     Insofar as the Report itself is a necessary part of the fabric of these reasons, it must of necessity find its way
into them.  I have in consequence prepared a Confidential Annexure to these reasons which will not be made publicly available.  It contains material of the character to which I have been referring.  I am, nonetheless, conscious of my responsibility to the community to provide it as best I can with basic information about these proceedings and with intelligible reasons for judgment:  see Arnotts Ltd v Trade Practices Commission (1990) 97 ALR 555 at 561.  To the greatest degree to which I have thus felt able I have referred directly to the Report in the reasons made publicly available.

 

An Inquiry InitiatedInquiry Initiated

     The Merit Protection (Australian Government Employees) Act, 1984, s56 provides:

    

     56.  (1)  The Minister or the Public Service Board may request the Agency [i.e. the MPRA], in writing, to conduct an inquiry into:

          (a)  a decision made, or an action taken, in relation to a Commonwealth employee in relation to his or her employment as a Commonwealth employee;  or

          (b)  decisions of a specified kind made, or actions of a specified kind taken, in relation to Commonwealth employees included in a specified class of Commonwealth employees in relation to their employment as Commonwealth employees.

          (2)  Where the Agency is requested under subsection (1) to conduct an inquiry into a matter, the Agency may conduct an inquiry into that matter and, where it conducts such an inquiry, shall provide to the Minister or the Board, as the case requires, and, in a case where the matter is a matter referred to in paragraph (a), to the Commonwealth employee concerned, a report in writing setting out the results of the inquiry.

     On 16 August 1994 the Minister Assisting the Prime Minister for Public Service Matters wrote to the Director of the MPRA in the following terms:

     Recently I have had brought to my attention matters relating to staff management at the Australian War Memorial.  I understand that there have been allegations made by staff at the Australian War Memorial of various types of workplace harassment over a considerable period of time.

     I now request, pursuant to section 56 of the Merit Protection (Australian Government Employees) Act 1984, that the Agency conduct an inquiry into, and report to me upon, workplace harassment at the Australian War Memorial.

     There are four matters to which I would draw attention in relation to this communication.  The first is that while the opening paragraph refers to "staff management", the s56 request is limited to the subject matter of "workplace harassment".  As will be seen, the interaction of these two subjects has assumed no little importance both in the MPRA's inquiry and in the proceedings before me notwithstanding the specificity of the request.

     Secondly, the request does not refer to any particular decisions or actions taken by designated individuals within the AWM.  The request is limited by subject matter but not by person or by event or, for that matter, by period of time.

     Thirdly, though the question was raised by an officer of the Attorney-General's Department as to whether the s56 request was technically defective when he was providing advice
to Mr Kelson, no issue was raised before me as to the efficacy of the request.  This noted, it is fair to say that the very generality of the request may well have contributed markedly to the distinct lack of focus in the inquiry it precipitated.

     Fourthly, most importantly, while the request identifies "workplace harassment" as the subject matter of inquiry and report, that term itself is not defined in Commonwealth legislation.  The Public Service Commission had produced a document, Guidelines on Eliminating Workplace Harassment (the "Guidelines"), which was launched on 25 May 1994 by the same Minister who, almost three months later, made the s56 request to the MPRA.  The Guidelines devote one of its four Parts to describing in general terms, and then to exemplifying in more particular terms, behaviour constituting workplace harassment.  It will be necessary to return to the Guidelines and to what properly can be taken to be comprehended by the term "workplace harassment".   I should add that the MPRA adopted its own definition for the purposes of its Report.  Here I would merely note that, during the course of the MPRA's inquiry, the Public Service Commissioner observed in response to a letter from Mr Kelson, that the MPRA's apparent conception of what the term could encompass "is very broad and goes beyond the explanatory and definitional material presented in the PSC Guidelines".  That observation, as I will indicate, goes to the heart of the controversy before me.

     As the MPRA appears not to have formulated - or at least to have communicated to the applicants - its own "common-sense, plain English definition" until November of 1994, it is necessary to detail the progress of the inquiry as it unfolded and the actual subject matter it appears to have been addressing.

     Before so doing it is desirable to make the following observations about the MPRA and its statutory object.

The MPRAMPRA

     The Merit Protection (Australian Government Employees) Act 1984, s4(1) provides that:

     The object for which the Agency is established is to ensure that actions taken and decisions made in relation to a Commonwealth employee in relation to his or her employment as a Commonwealth employee are fair and equitable and are taken or made in accordance with sound personnel management practices and with due regard being had to:

          (a)  the efficiency of the relevant authority;  and

          (b)  the need to ensure good relations between the relevant authority and employees.

The term "relevant authority" for present purposes can be said to mean the Public Service or else a Commonwealth authority.

     I refer to this provision not only because it expresses in a general way the legislated "mission" of the MPRA but also because that mission, as the MPRA itself acknowledged, has had an influence in the inquiry it pursued and in the Report it produced.  This notwithstanding, counsel for the respondent conceded - correctly in my view - that the relevance of s4 to the s56 inquiry was slight and that the definition of workplace harassment was not to be contrived in any way by the s4 object.  I will return to this matter.

The Progress of the InquiryProgress of the Inquiry

     Following the Minister's letter of 16 August 1994, the MPRA advised Mr Kelson the following day that it intended to conduct the inquiry requested of it into workplace harassment at the AWM.  Cooperation was sought in the matter.  As to the processes of the inquiry the MPRA indicated (inter alia) in its letter to Mr Kelson of 17 August that:

     the substance of any adverse material provided against an individual or individuals, will in accordance with the rules of natural justice, be brought to their attention.  They will also be given an opportunity to comment on the substance of that material and any recommendations that may be made that may affect them.

I draw attention to the dual commitment made.  It would allow comment both on the substance of adverse material and on specified recommendations.

     The MPRA officer charged with conducting the inquiry, Ms Blesing, met with Mr Kelson on 17 August.  At that meeting she informed him that the inquiry would go through the stages (1) of gathering information from persons within the AWM who were
prepared to furnish it;  (2) of appraising the information and of bringing to the attention of persons the substance of any allegations made against them;  and (3) of producing a report.  During that meeting Ms Blesing is said by Mr Kelson to have indicated that she was unaware of the s56 request being based on any specific allegations and to have observed that "this will be a trawling exercise".  I am prepared to find that observations to these effects were made by Ms Blesing.

     On 18 August Mr Kelson, on behalf of the AWM, and a Mr Doolan, on behalf of the MPRA, issued a joint circular to all AWM staff.  That circular ensured confidentiality would be maintained by the MPRA;  it reiterated the dual natural justice commitments noted above;  it indicated how information could be provided to the MPRA;  and it gave 30 September 1994 as the tentative date for finalisation of the inquiry.  The final two paragraphs of the circular were in the terms that:

     We therefore encourage you to take this opportunity to raise any concerns you may have about staff management matters at the Australian War Memorial.

     Please include specific examples that support your allegations in any written statement you provide or in any oral submission you propose to make as this information will assist the inquiry officers in their task.

     The two features to be noted about the circular are (i) that while it indicated that the inquiry was into allegations of workplace harassment, it did not indicate in any way the type or types of behaviour which could constitute this;  and (ii) that the encouragement given in the penultimate paragraph was to raise any concerns had about "staff management".   An Attorney-General's Department officer was to indicate to Mr Kelson in advice of 5 October 1994 that the reference in the circular to "staff management matters" was "perhaps unfortunate".

     On 22 and 23 August 1994 the MPRA convened information sessions both for the staff of, and for the unions represented at, the AWM.  Meanwhile on 22 August Mr Kelson has sworn that, by memorandum, he informed the Minister for Veterans' Affairs - the minister having portfolio responsibilities for the AWM - of his concerns as to the ambit, methods and vagueness of the inquiry.  This, as will be seen, is not the only occasion on which Mr Kelson expressed his concerns to his minister.

     On 19 September 1994 the inquiry entered on its second stage.  Dr McKernan was provided with raw data of the issues and allegations raised against him.  The seven headings under which these were itemised (this suggests a far greater degree of specificity than the delphic descriptions in fact given) were themselves notable in that a number (arguably a majority) were not cast in terms suggestive of workplace harassment - at least as that term was used in the Guidelines.  A very significant proportion of the matters itemised under the headings had no apparent connection at all with that subject. Issues as diverse as budgetary allocations, the provision of
career paths and delegation were raised in the particulars - but not in ways which suggested that they involved employment discrimination.  Part I of the Confidential Annexure elaborates upon the "raw data".

     A like communication was made to Mr Kelson on 23 September 1994, listing the issues and allegations raised against him.  They were categorised under the same seven headings as in Dr McKernan's case.  These are referred to in Part I of the Confidential Annexure.  A document accompanying this material gave a brief description of workplace harassment and of the responsibilities of managers in the elimination of workplace harassment.  It seems to have been made up of unacknowledged quotations from, and precis of, the PSC Guidelines.

     The issues and allegations raised against the two applicants were quite diverse in their subject matter.  As I have noted, much in them had no apparent connection at all with workplace harassment.  The MPRA was mindful of this.  It nonetheless still considered it appropriate to pursue them.  It is clear that, in part at least, the MPRA's attitude was justified (in its view) by its s4 object:  see Part II of the Confidential Annexure.

     The concern Mr Kelson was registering with the course of the inquiry now prompted action on his part.  On 27 and 28 September 1994 he sought the advice of the Office of General Counsel, Attorney-General's Department, as to the status, scope and method of the inquiry.  Written advice, to which reference will be made below, was received from the Office of General Counsel on 5 October 1994.

     Also on 27 September a meeting of senior officers of the AWM was held.  It clearly was concerned with the inquiry and the allegations made in it.  Mr Kelson gave evidence that he did not attend the meeting in its entirety;  that he did speak at it in relation to some of the allegations made against him because they related to management or "false perceptions of management" and seemed to him to be "beyond the ambit of the inquiry".

     The MPRA ascertained from whatever source that that meeting had occurred.  The respondent, by letter to Mr Kelson of 28 September, indicated that the report of the meeting she had obtained suggested there was discussion, inter alia, of "ways of frustrating MPRA's current inquiry".  The letter further referred to reports of alleged intimidation of staff cooperating with the inquiry and sought Mr Kelson's assurance that his personal undertaking of cooperation remained operative.  By letter of 29 September 1994 to the Director of the MPRA, Mr Kelson assured her he had not engaged in meetings designed "to frustrate the legitimate objectives of the MPRA".  He explained the nature of his own participation in the meeting of 27 September.  He indicated unawareness of any intimidation of staff cooperating with the inquiry.  And he suggested a meeting with the respondent as he did "have some concern about aspects of the inquiry".

     It seems probable that, at least from about this time, there was escalating disquiet felt by respondent and applicants alike about the actions of the other or others.  The actions of Mr Kelson in seeking advice from the Attorney-General's Department, in speaking at the meeting of 27 September, and his contacts with the Public Service Commissioner on a number of occasions (one of which is later noted) to raise concerns about the inquiry without having first raised them with the MPRA, were portrayed in the Report (with two others matters, one later mentioned in these reasons) as constituting examples of workplace harassment (in the view of some AWM staff), and as apparent attempts to frustrate the inquiry (in the view of the MPRA):  see Part III of the Confidential Annexure.

     On 5 October 1994, as I have previously noted, Mr Kelson received a written advice from the Attorney-General's Department.  The burden of that advice was that:

     (a)  to the extent that the MPRA was inquiring into matters other than workplace harassment, the inquiry was not authorised by s56;

     (b)  despite the width of its powers, the MPRA had a duty to accord procedural fairness to those against whom allegations were made - and the suggestion was made that, while a firm view could not be reached on whether it had to date discharged that duty, unless greater detail of the allegations were given the MPRA will probably have failed to accord Mr Kelson procedural fairness;

     (c)  there was no legal obligation to respond to the allegations, although a possible offence under the MPRA's own statute (s81) was foreshadowed if a failure to respond had a particular effect;  and

     (d)  other than by initiating legal proceedings, the only avenues open to Mr Kelson to ensure that the MPRA did not exceed its authority was to convey his concerns to the Director of the MPRA and to other relevant persons in authority "with the aim of getting the MPRA to bring the inquiry back within the terms of Mr John's [ie the Minister's] request".

     The general tenor of the advice was that a significant part of the inquiry was beyond the terms of the Minister's request and to that extent was "patently without legal authority".  It had gone beyond workplace harassment to such an extent that "workplace harassment appears to have become an issue of relative insignificance in the overall inquiry".  As to positive steps to correct matters, the advice suggested that, if a projected meeting with the Director of the MPRA was unavailing, "Secretary to Secretary or Minister to Minister communications on the matters of concern could be considered".

     I mention this advice in some detail as it conformed in its own way to the pattern of opinion that the applicants themselves entertained or later received from the Public Service Commissioner.

     On 6 October 1994 the Director of the MPRA wrote to Mr Kelson indicating she understood that he and others "have various concerns about the progress and conduct of the ... inquiry".  She reassured him that it was being "conducted strictly in accordance with law, and with due regard to natural justice, appropriate guidelines" and secrecy laws.  She indicated that the process of taking submissions had closed;  that the material was being processed;  and that, in accordance with the rules of procedural fairness, individuals who had allegations made against them would be provided with those specific allegations and their responses would be sought.

     On 7 October at a meeting with the Director of the MPRA and other officers of the Agency, Mr Kelson provided the respondent with a copy of the advice received from the Attorney-General's Department.  The Director, for her part, raised the MPRA's concerns about the perceived obstruction by some senior officers of the AWM to the proper conduct of the inquiry.  It should be added that by this stage the MPRA, according to its Report, had been informed that versions of the information provided to Mr Kelson and Dr McKernan were supposedly widely known among AWM staff and were producing mis-informed comment.

     On 18 October 1994 Dr McKernan was provided by the MPRA with a now reduced list of allegations plus accompanying materials of more general character which included an early and full reference to the s4 object of the MPRA and a guide to the meaning of "harassment".  The guide was made up of standard dictionary meanings of the term and of references to the Public Service Commission's Guidelines on Eliminating Workplace Harassment and Guidelines on Eliminating Sexual Harassment.  I will return below to these allegations.

     A copy of that list of allegations was provided in turn by Mr Kelson to officers of the Attorney-General's Department at a conference held on the same day for the purpose of receiving advice in relation to the list.  Mr Kelson had been provided with the copy by Dr McKernan.  Written advice was received from the Office of General Counsel on 2 November 1994.

     Before turning to that advice I would simply note that as a result of information supplied to him by a Mr Hanna (the assistant director of the AWM) of a conversation had with Ms Blesing of the MPRA - information confirmed by Mr Hanna in evidence - Mr Kelson had now been given reason to believe (a) that the MPRA had not by then formulated a definition of workplace harassment, and (b) that Ms Blesing was of the view that natural justice need only be accorded at the time of making recommendations.

     The particular question raised for the advice of the Attorney-General's Department was whether the allegations made against Dr McKernan were precise enough for a response to be made.  The advice acknowledged that whether or not sufficient information had been provided to enable Dr McKernan to know as exactly as possible what was being alleged against him would depend to a large extent on the background knowledge of Dr McKernan.  For this reason the advice limited itself to "general advice" on the sufficiency or otherwise of the allegations.  But of this it noted that (i) the majority of allegations did appear to the adviser to lack the detail which would be required to enable them to be responded to in any useful fashion and that, if this was a cause of uncertainty to Dr McKernan in relation to any particular allegation, it would be quite reasonable and appropriate for him to seek details to clarify that allegation;  and (ii) many of the allegations did no more than present an adverse conclusion about Dr McKernan expressed in very general terms without setting out the basis for the conclusion.  As to the second of these it was indicated that, without information as to the bases for such conclusions, it could be said that Dr McKernan was not being given a reasonable opportunity to respond to the conclusions.

     Dr McKernan's written response to the allegations were to be submitted to the MPRA by 1 November 1994.  On that day - which I note was the day preceding that on which the written advice of the Attorney-General's Department was received - Dr McKernan requested an extension of time to respond from the MPRA.

     By letter of 9 November 1994 the MPRA granted an extension up to and including 15 November 1994.  It indicated it would not be inclined to grant any extension beyond this.  Importantly for the purposes of these proceedings, the letter concluded with the following:

     I also wish to advise you that the MPRA, for the purposes of the Inquiry, has summarised the material on workplace harassment into the following working definition:

     "Harassment is any type of behaviour that can be reasonably expected to cause a person to feel threatened, uncomfortable or unable to cope with their work environment."

     This definition is based on a number of reference sources including those of which you were previously advised.

     You may wish to bear this in mind in finalising your response.

It will be necessary to return to this "definition".

From 2 November 1994 onwards several articles appeared in metropolitan newspapers.   These may have been incorrect and misinformed in varying degrees in what they said of the inquiry and its focus.  It is unnecessary to enlarge upon them here.  However I will refer below to an effect of their appearance.

     Mr Kelson acknowledged in cross-examination that, by November 1994, the inquiry was a major source of controversy, stress and division within the AWM.  Of the about 270 staff at the AWM, 54 current employees - and I should note 15 former employees - of the AWM provided adverse comment to the MPRA.  These people, the MPRA noted in its Report, "considered themselves and/or others to have been, or currently to be, the victims of harassment or poor personnel management practice that leads to feelings of harassment".  The 54 were made up of officers spread across the administrative hierarchy of the AWM. 

     It is important to place some emphasis upon the division and stress within the AWM that I have noted.    Howsoever people may have interpreted the actions of management at other times, it seems clear that, by this stage, suspicion and fear were affecting some staff.  The MPRA clearly regarded itself as having a responsibility to those who felt harassed or distressed.  In consequence, as time progressed, it began to weigh its sense of that responsibility against its obligations to those against whom allegations had been made:  see Part IV of the Confidential Annexure.

     On 4 November 1994 Mr Kelson addressed the AWM staff about the media coverage of the inquiry referred to above.  Evidence was not adduced as to what in fact transpired at that meeting.  It nonetheless produced effects which appear to have had some influence on the MPRA's attitude towards Mr Kelson in particular.  In its Report it refers to the Agency being contacted by staff of the AWM to express concern at what was alleged to have been an aggressively delivered address.  I should add that this address was one of the examples given of actions of Mr Kelson to which I have earlier referred, which the MPRA regarded in the Report as apparent attempts to frustrate the inquiry:  see Part III of the Confidential Annexure.

     On 9 November Mr Kelson received the finalised list of allegations to which he was invited to respond. The response was sought by 23 November.  The list was accompanied by a document which, inter alia, contained the same definition of "workplace harassment" as that communicated to Dr McKernan.  I will return below to the allegations made against Mr Kelson.

     On 10 November Mr Kelson took an action which, as I earlier foreshadowed, the MPRA seems ultimately to have interpreted as an inappropriate attempt on his part to frustrate the course of the inquiry.   He wrote to the Public Service Commissioner seeking his advice on the definition of "workplace harassment" finally settled on by the MPRA:  (see Part III of the Confidential Annexure).

     The Public Service Commissioner's response of 11 November 1994 is, save for formal parts, set out here in full.

     I refer to your letter of 10 December 1994.  You have drawn to my attention the Merit Protection Review Agency's proposed "working definition" of "workplace harassment" and expressed concern about its compatibility with the definition in the PSC Guidelines on Eliminating Workplace Harassment.

     I share your concern.  The wording provided by the MPRA is very broad and goes beyond the explanatory and definitional material presented in the PSC Guidelines.

     There is already a working definition of "workplace harassment" in the Guidelines and this was developed in consultation with, and with the agreement of APS agencies.  It was formalised by the Minister, the Hon Gary Johns, when he launched the Guidelines on Eliminating Workplace Harassment on 25 May 1994.  Consequently, no further definition is required and neither is it appropriate for one to be developed.

     Furthermore, given that the Minister has requested the inquiry into allegations of "workplace harassment" in the Australian War Memorial, I believe that the inquiry is referenced by the Guidelines on Eliminating Workplace Harassment.  The Guidelines are the official guidance on this subject and it is important that they be used to ensure that management actions are not confused with harassment issues.  The suggested new definition of "workplace harassment" runs the risk of seriously confusing the two matters (see para 1.3 of the Guidelines which was intended to avoid this).

     I will be writing to Ann Forward [the respondent] in similar terms.

     The MPRA's Report noted receipt of a letter from the Public Service Commissioner in which "[h]e requested the withdrawal of the definition":  Report 4.1.22.  Such did not occur.  On 21 November 1994 Ms Blesing of the MPRA informed Mr Kelson of this.  I should also note that Dr McKernan had been given an extension until 21 November to make his responses to the allegations against him.

     On 16 November 1994 a memorandum and accompanying explanatory paper were sent by Mr Kelson to the Minister for
Veterans' Affairs - the minister having portfolio responsibility for the AWM.

     The memorandum did not, in terms, invite ministerial action in the matter.  It merely registered the Director's concerns.  It was expressed in terms which could leave no doubt in the recipient as to the burden of those concerns.  It is sufficient to say here that the memorandum (briefly) and the explanatory paper (extensively) called into question the scope of the inquiry, deficiencies in its methods, the significance of the allegations made, the inability of the two persons against whom allegations were made to make useful responses to them, and the immediate and the perceived long term effects of the inquiry on the AWM.  It concluded with the observation:

     "I believe that this matter is of such importance that it needs to be laid out before you."

    

     There is no evidence before me of any reply being made to this memorandum.  However, an all-staff circular of 23 November 1994, which was distributed under the name of the Chairman of the AWM Council and which announced the appointment of an Acting Director to take effect on Mr Kelson's retirement on 31 December, concluded with this paragraph:

     At the Council's recent meeting, we were briefed on the progress with the MPRA Inquiry by the head of that agency, Ms Ann Forward.  The Minister has advised me of his concern about the length of time that the Inquiry is taking and its impact on staff and the day to day operations of the Memorial.  He is taking these concerns up with his Ministerial colleague, the Hon Garry [sic] Johns, the Minister Assisting the Prime Minister in Public Service Matters.

The Council meeting referred to occurred on 10 November 1994.

     In mid-November the whole matter moved beyond the internal arena of government.  With the authorisation of the Council of the AWM, Mr Kelson sought outside legal advice.  Dr McKernan joined him in this.  Their solicitors requested and secured a 14 day extension from 23 November (Mr Kelson) and 21 November (Dr McKernan) in which to respond to the allegations against them.

     Legal advice was obtained from Senior Counsel in Sydney.  Its thrust, in conformity with the second advice from the Attorney-General's Department, was that the rules of procedural fairness applied to the inquiry;  and that these rules would require the specification of those matters grounding the allegations which had not so far been provided adequately.

     On 2 December 1994 the solicitors for Mr Kelson and Dr McKernan wrote to Ms Blesing at the MPRA informing her of the advice received.  Having indicated the availability of, but the undesirability of resort to, court proceedings to settle their clients' concerns, they sought rather - and I here merely precis an 8 point list of requirements - that the
validity of the matters inquired into be demonstrated by the MPRA;  that the definition of workplace harassment adopted be justified or else confined to the Guidelines;  and that detailed particulars be given of the matters said to justify the allegations.  As to this last point, the solicitors wrote that they presumed Mr Kelson and Dr McKernan would be supplied with a revised list of allegations and that the MPRA would not proceed further with its "enquiry or report" without notifying them.

     That notice was provided in a letter from the Director of the MPRA of 8 December 1994.  The Director denied that there was any serious question as to the validity of the inquiry undertaken.  She equally denied that there had been a breach of the rules of natural justice on the MPRA's part in the manner in which it had undertaken the inquiry whether generally or in its dealings with Mr Kelson or Dr McKernan.  The Director justified her unpreparedness to provide any further information concerning the allegations made by reliance upon sections in the Guidelines which suggested what were the natural justice entitlements of alleged harassers, and which indicated why confidentiality for complainants may need to be maintained as against their alleged harassers.  The letter concluded with the Director indicating (after a reference to the Agency's s4 object) that any significant delay would, given the present situation at the AWM, be inconsistent with the principles of sound personnel management.  Nonetheless an extension of time until 14 December was granted.  The full text of the penultimate paragraph, which enlarges on the MPRA's view of the "present situation", is set out in Part V of the Confidential Annexure.  The rituals that lead to the courtroom were now beginning.

     On the day set for the close of the extension, the solicitors on instruction again wrote to the MPRA indicating that, in the absence of the particulars previously sought, their clients were considering initiating proceedings in the Federal Court.  Pending final instructions (these were expected early the following week) the MPRA was requested to withhold any further action.  That request was denied by letter of 16 December 1994.

     On 20 December 1994 the solicitors again wrote to the MPRA indicating that proceedings were to be initiated.  To that end they intended to seek an interim injunction staying the further conduct and completion of the inquiry.  On the same date the Director of the MPRA submitted her Report to the Minister.  Neither Mr Kelson nor Dr McKernan were given any prior notice of its recommendations.

     Before turning to the proceedings which the applicants then initiated in this Court on 23 December 1994, it is necessary to note several matters touching on the MPRA's conduct of the inquiry and on the reactions of the applicants to what they perceived to be the scope in fact of that inquiry.  To place these matters in context, it is appropriate first to refer directly to the subject matter into which the minister requested inquiry.

"Workplace Harassment""Workplace Harassment"

     Words that have a perjorative connotation need to be used with particular care.  Used inappropriately they can damage unfairly:  cf the term "corrupt conduct" considered in Greiner v Independent Commission Against Corruption (1992) 28 NSWLR 125.  No less so than the term "sexual harassment", "workplace harassment" has such a connotation.  Both are so employed, for example, in the revised version of the Public Service Commission's Guidelines on Official Conduct of Commonwealth Public Servants issued on 7 March 1995.

     There is a number of Commonwealth statutes or statutory instruments which proscribe particular forms of discrimination in employment (including public sector employment), or which aim in their own ways to secure fair treatment of public sector employees.  But, as I have already noted, Commonwealth legislation does not, and did not at the time of this inquiry, provide any definition of workplace harassment.

     Again, as I have noted, on 25 May 1994 the Public Service Commission had its Guidelines launched by the Minister Assisting the Prime Minister for Public Service Matters.  The Guidelines were intended to complement previously issued ones on eliminating sexual harassment.  To the extent that the Guidelines identify behaviour said to constitute workplace harassment they can be said, quite properly in my view, to provide an officially sanctioned expression of behaviour which will be so regarded in Commonwealth employment.

     Part I of the Guidelines describes workplace harassment.  Its opening three paragraphs warrant quotation in full:

     1.1  Workplace harassment is a form of employment discrimination.  It consists of offensive, abusive, belittling or threatening behaviour directed at an individual worker or group of workers which may be a result of some real or perceived attribute or difference.  Such attributes or differences may include gender, race, disability, sexual preference or age.  These attributes or differences are more fully described in Appendix A.

     1.2  The behaviour is unwelcome, unsolicited, usually unreciprocated and usually (but not always) repeated.  It makes the workplace or association with work unpleasant, humiliating or intimidating for the people or group targeted by this behaviour.  It can make it difficult for effective work to be done.

     1.3  Workplace harassment must not be confused with legitimate comment and advice (including relevant negative comment or feedback) from managers and supervisors on the work performance or work related behaviour of an individual or group.  Feedback on work performance or work related behaviour differs from harassment in that feedback is intended to assist staff to improve work performance or the standard of their behaviour.

Harassment so described is then illustrated (i) generally, by examples of offensive, threatening or unjustifiable behaviour directed at another;  and (ii) particularly, by examples involving offensive behaviour focussing on racial, cultural and religious differences and on disability or medical conditions.

     The Guidelines then refer to two matters which, because they attracted some attention in these proceedings, warrant quotation:

     1.9  Often harassing behaviour is of a minor nature.  Individual incidents may seem too trivial to warrant attention, or the person subjected to harassment may seem unaffected.  However, where continued, such behaviour can undermine the standard of conduct within a work area, which may:

          -    erode the well being of the individual or group targeted;  and

          -    lower overall staff performance

     1.10The person subjected to harassing behaviour does not always complain.  This is not necessarily because the harassment is trivial, but because the person may lack the confidence to speak up on their own behalf or feel too intimidated or embarrassed to complain.

     Throughout the inquiry, and in these proceedings, the applicants have contended that the Guidelines provided the definition of what was intended to be understood as workplace harassment within the Public Service environment.  As it was the Minister who launched the Guidelines who requested the inquiry less than three months after that launch, it was their expectation that the inquiry would be into the subject matter identified in the Guidelines.  They were not alone in that view.  As I have noted, it was shared by those to whom they turned for advice - first, the Office of General Counsel of the Attorney-General's Department and, secondly, the Public Service Commissioner.

     It is not possible on the state of the evidence before me to determine when and why the MPRA took the view that the Guidelines' description of workplace harassment was neither appropriate on its own, nor adequate, for the purposes of the inquiry.  Even if it be assumed that the Agency began its inquiry using the Guidelines it is clear that, by 18 October 1994, when the revised list of specific allegations were sent to Dr McKernan, dictionary meanings of "harassment" (drawn from the Macquarie Dictionary, the Shorter Oxford English Dictionary and the Penguin English Dictionary) were providing guides to the inquiry alongside such guidance as was being derived from the Guidelines.

     It was on 9 November 1994 that the applicants were first made aware that the MPRA had created its own definition.  That definition, as Dr McKernan was informed by letter of the same date, was the one to be borne in mind when finalising their responses to the allegations made against them.

     Because of its importance the terms of that definition should be repeated:

     Harassment is any type of behaviour that can be reasonably expected to cause a person to feel threatened, uncomfortable or unable to cope with their work environment.

     The apparent reason for the adoption of a "definition" -  and I highlight this word designedly - was the view expressed in the Report, and again in argument, that the Guidelines did not "specifically define" workplace harassment.  The MPRA did not say why the Guideline's treatment of the subject was nonetheless inadequate.  It did not say why such a "definition" was necessary.  Whether the phenomenon of workplace harassment is capable of unexceptionable specific definition is not for me to say.  It will, however, be necessary to comment upon the definition adopted.

     Of its own definition the MPRA has this to say in the Report:

     3.2  It is a common-sense, plain English definition rather than a narrow, legalistic one which would be unhelpful in attempting to assess whether staff had been harassed.  It is also a definition which incorporates an objective element, of whether responses to the behaviour complained about reasonably could be seen by an outsider to constitute workplace harassment.

     3.3  It also includes a relationship to productivity, in that people who can't "cope" are not working effectively or efficiently and this impacts on their productivity and the overall efficiency of the workplace.  This is of concern not only to departments and authorities but it is also a factor that the MPRA has regard to as part of its object [i.e. its s4 object].

     3.4  This definition was used by Carmel Niland, the former President of the NSW Anti-Discrimination Board, in her Report of the Independent Inquiry into matters relating to the resignation of the former Minister for Police and Minister for Emergency Services, Terence Griffiths MP.  It encompasses, in the MPRA's view, the common meaning of the word "harassment" as found in various dictionaries.

     The submission of the respondent was that, in conducting this inquiry, the MPRA was entitled to choose any definition that was reasonably open to it and to act upon it.  Equally it
was denied that the definition was inconsistent with the Guidelines.

     In contrast it was submitted by the applicants that the definition was far too broad and encompassed matters that could not have been harassment.  The consequential submission was that the definition was then used to justify an inquiry into, and to make findings about, matters beyond the jurisdiction or authority resulting from the s56 request.

     The definition adopted is, in my view, an inherently flawed one.  Far from being a common-sense, plain English one it would require significant qualifications to be grafted on to it before it could be rendered serviceable.

     The definition is one which focussed upon the feeling of the person said to be harassed.  Any behaviour that can reasonably be expected to cause the required feeling is harassment.  It is not clear whether that behaviour needs to be specific or whether it should be directed at, or (to use the language of the Guidelines) "targeted at", the person experiencing that feeling.  The following observation which appears in the Report para 3.6 could be taken as suggesting neither of these is necessary:

     Where management is perceived to have failed to prevent or stop workplace harassment or where there is a lack of faith that management will act to prevent or stop it, it is reasonable for staff to feel threatened.

     This may give reason for pause.  Of far greater concern, though, is the complete lack of differentiation between possible causes of the required feeling.  That feeling may be caused by wholly offensive or by wholly inoffensive behaviour.  Depending on the reason for, or purpose of, its taking a budgetary decision, a personnel decision, a decision on performance, or a disciplinary decision may properly be described in a given instance as (i) a harassing decision which could reasonably be expected to cause a person to have the required feeling;  or (ii) an entirely unexceptionable decision notwithstanding it could reasonably be expected to cause a person to have that feeling.

     It is inconceivable that the MPRA actually intended there to be no such differentiation as made here and that perfectly permissible and properly motivated decisions or actions should be characterised as workplace harassment.  To adapt the language of Gleeson C J in the Greiner case, above at 134-135, to the present matter:

     A conclusion that a person, whilst acting in a way which he believes is in all respects lawful (and which is not found to be unlawful) and in a way that would not be seen ... as contrary to known and recognised standards of honesty and integrity, is nevertheless acting [as an harasser], appears surprising.  The explanation may be that there is something surprising about the definition of [workplace harassment].

     There is a well-known aphorism in United States tort law;  "It is not a tort for government to govern":  see Dalehite v United States 346 US15 at 57 (1953).  Likewise it is not workplace harassment for managers to manage.  The MPRA's definition appears to have lost sight of this.

     The definition lacks that vital element which gives the perjorative connotation to behaviour which attracts the description of workplace harassment.  This is that element which differentiates the offensive from the inoffensive.  Para 1.3 of the Guidelines quoted above recognises the need for this.  The MPRA's definition does not.

     It is not to the point that one can find sentences scattered in the Report which demonstrate that the MPRA acknowledged the need to differentiate harassment from the stress or distress felt on account of management decisions.  Those who had allegations made against them and who were being asked to respond by reference to this definition did not possess the luxury of the MPRA's second thoughts on its definition.

     In argument before me it was accepted by the respondent's counsel that the definition required a particular, and restrictive, reading.  It was, as I understood it, suggested that the word "reasonably" did not refer to the expected effect of the behaviour on the person said to be harassed.  Rather it referred to the behaviour itself and to whether it could be said to be harassing behaviour.  In other words it served to exclude from the definition conduct which, though it produced the required feeling, nonetheless was appropriate in the circumstances.  Even if one were to accept this, despite the violence it does to the definition, it brings one no closer to differentiating the appropriate from the inappropriate.  I would add that the contortion I was here asked to engage in is to be contrasted with the Report para 3.2 quoted above which appears itself to invert the definition so that the "response to the behaviour complained about" can be what "constitutes workplace harassment".

     If the MPRA's inquiry was conducted into all such matters as the definition on its face mandated, it would unquestionably have departed from the s56 request made of it -  and by a large margin.  But the definition as I have noted seems to have been adopted at the end, not at the beginning, of the inquiry.  And the determination of this matter does not, in any event, turn on the unfortunate terms of the definition alone.  An inquiry was conducted.  Its subject matter, its procedures and its products need now to be examined as also do the perceptions that these could reasonably be said to have created in the applicants.  I refer to these perceptions as they are not without importance to the denial of procedural fairness/natural justice claim they make.

The Subject(s) of Actual or Apparent InquirySubject(s) of Actual or Apparent Inquiry

     To the extent that workplace harassment can properly be said to be a form of workplace discrimination - and this is
the central idea of the Guidelines and, though not operative at the time of the MPRA inquiry, of the Guidelines on Official Conduct of Commonwealth Public Servants - it can occur wherever official power or position can be used improperly to discriminate.  For this reason there are no obvious limits to the types of decision or action taken in the workplace and affecting workers which can legitimately be inquired into for the purpose of determining whether workplace harassment has occurred or is occurring.  As the respondent's counsel submitted, to differentiate harassment as such from management as such is to draw a false dichotomy.

     Harassment can occur in an exercise of powers of management no less so than in the direct exercise of physical intimidation for reasons of personal prejudice.  For this reason, in my view, the s56 request did not significantly constrain the MPRA in terms of the range of workplace decision and action into which it properly could enquire.  All facets of the exercise of official power and position to the extent that they could allow or give rise to discrimination in the workplace - I here use the term "discrimination" neutrally - were appropriate, or at least authorised, areas of inquiry.

     What constrained the MPRA's investigation was not where it could look but what it could look for.  It could pursue and consider workplace harassment allegations wherever they may have occurred, be this in budgeting, financial management, personnel decisions, performance appraisal or personal actions.  What the inquiry was not authorised to do was to examine budgeting, financial management, personnel decisions, etc either as subjects of inquiry in their own right or as subjects of inquiry for other purposes.

     I have referred already to (i) the unfortunate character of the initial joint circular of the MPRA and AWM of 18 August 1994 which encouraged staff to raise "any concerns you may have about staff management matters";  and (ii) the nature and classification of the "raw data" of issues and allegations sent to each of the applicants.  As to the raw data, it should be said - and I so find - that it provided the applicants with reasonable grounds for concluding that the inquiry itself was one which, as conducted, extended well beyond workplace harassment (as that term is used in the Guidelines).  It ventured into general matters of management at the AWM.

    

     To be added to this are (iii) the first advice of the Attorney-General's Department which could only have confirmed the conclusion the applicants were drawing as to the scope of the inquiry;  and (iv) the emphasis which the MPRA began increasingly to place on its s4 object once the finalised allegations were settled.  The s4 object, particularly that part of it concerned with sound personnel management practices, is one which permeates the Report.

     The final list of allegations made against the applicants, insofar as these were suggestive of the scope given by the MPRA to the inquiry, were not likely to remove such concerns as the applicants already entertained.  Unlike the earlier raw data supplied to the applicants, the revised allegations in both instances were subsumed under several broad headings which, in different ways, embody the terms "harassment" or "workplace harassment".  The matters referred to in this and the following paragraph are enlarged upon in Part VI of the Confidential Annexure.  To the extent that the allegations were then broken down under sub-headings, those sub-headings were cast in language that is conventionally used to describe types of harassing behaviour (eg "intimidation").  Nonetheless, the specific allegations actually made by no means described behaviour which in all cases could be said to constitute harassment at least in terms of the Guidelines.

     The reason for this was that some number of the allegations made, even if referable to a decision or action capable of producing the feeling required by the MPRA's definition, are nonetheless consistent with the decision or action alleged being wholly inoffensive in character.  As I have noted, the MPRA's definition (which the applicants in any event disputed) fails to take account of the need to make this differentiation.  This difficulty when coupled (a) with the lack of particularisation of some number of the allegations and (b) with the purely assertive and generalised character of others, would be likely only to confirm the belief the applicants entertained about the scope of the inquiry the MPRA
was undertaking and about which they were quite properly concerned in my view.

     When one turns to the MPRA's Report, there is abundant evidence from which to infer that the MPRA, for whatever reason, conducted an inquiry which it doubtless genuinely believed would promote the realisation of a workplace environment based on its own s4 object.  The undiscerning definition it adopted would not have constrained it from so acting.  Part VII of the Confidential Annexure elaborates on this matter.  Suffice it to say here that the Report by its own admission, in its own findings, and in its suggestions for further consideration, addresses problems not necessarily related to workplace harassment.

     In my view, the conclusion cannot be resisted that, whether or not misled by its own definition, by its s4 object, or by a combination of these (and other) reasons, the MPRA's inquiry went, and was rightly seen by the applicants to have gone, well beyond the mandate given by the s56 request.  I so

find.

Responding to the Allegationsto the Allegations

     Despite the request of the MPRA, the applicants did not provide responses to the allegations made against them.  Though afforded this opportunity, they nonetheless claim that they were denied natural justice.  That claim is grounded primarily in the submissions (i) that they were never given such sufficient details (particulars) of the allegations as would satisfy the requirements of procedural fairness;  and (ii) that they were told they would be given, but were denied in fact, a full opportunity to respond to allegations made, and to recommendations to be made, about them.

     In cross-examination Dr Kelson indicated the reasons why he did not respond to the allegations were that (i) he objected to the MPRA's definition which, given the Guidelines, he could not accept;  and (ii) that, having received advice both from the Attorney General's Department and from Senior Counsel that further particularisation was necessary if the requirements of procedural fairness were to be satisfied, and having requested such particularisation through his solicitors on 2 December 1994, he was made aware from the MPRA's letter of 8 December 1994 that no further particulars would be forthcoming.

     Both Mr Kelson and Dr McKernan in fact took steps - and in the latter's case significant steps to the extent of amassing a body of documentation - to prepare responses to the final list of allegations.  It is the case that, in relation to some number of the allegations made against each respectively, each was able to identify precisely the particular action/event/decision referred to, and to respond to it in detail.  But it equally is the case in relation to allegations made against both of them that (a) some number of the allegations related simply to perceptions entertained by others of each which, for this very reason, could not sensibly be answered;  (b) some involved generalised assertions as to a supposed propensity or an alleged pattern of behaviour substantiated only by an "e.g....";  and (c) some related simply to what, in the absence of more specific particularisation, could only be said to be decisions properly open to management to take.  Part VI of the Confidential Annexure illustrates these characteristics in the allegations.

     Both the definition, with its focus on the feeling of the person said to be harassed, and the view taken by the MPRA (Report para 3.6.1) that the perception of management's failure to prevent or stop harassment could itself give rise to harassment - at least under its definition - undoubtedly exaggerated the difficulty in which the applicants found themselves in meeting the allegations.  Their draft responses to particular allegations reflect this.

     In this state of affairs, set in the context of the concerns that had been communicated to the MPRA from 7 October onwards first about the scope of the inquiry and then later about the definition adopted, it was in my view reasonable and probably prudent for the applicants to determine not to make the responses sought of them.  The MPRA had put them in a position in which they should not have been placed.  I find accordingly.

     It should also be emphasised that the applicants' failure to respond, far from being an inexplicable act of obduracy, reflected a pattern of concern on their part about the inquiry which the MPRA seemed unable to appreciate.

A Pattern of ConcernPattern of Concern

     One of the more perplexing features of this inquiry was the apparent inability of the MPRA to understand the concerns the applicants expressed about the scope of the inquiry, about the definition of workplace harassment adopted, and about the need for proper particularisation of the allegations made.

     It is not as if these concerns merely expressed unreasonable and idiosyncratic views that the applicants alone entertained.  For advice they resorted to what probably were the two most appropriate sources of advice available to them within the executive arm of government - the Attorney-General's Department and the Public Service Commissioner.  In each instance that advice served to confirm the causes of their concern.  In each instance the advice was furnished as well to the MPRA.  In each instance the MPRA apparently found it not compelling.

     Beyond seeking advice, Mr Kelson, as Director of the AWM, registered his concerns with the minister having portfolio responsibility for the AWM on several occasions over the life of the inquiry.  It can properly be said that, insofar as there were constitutionally and bureaucratically appropriate avenues open within government to seek advice and to express concern, these were availed of by Mr Kelson.

     I have no evidence before me as to the sources of advice, if any, availed of by the MPRA in reaching the conclusions it did on the subjects of the applicant's concerns.  Equally, there is no evidence to suggest that, in the face of those concerns, the MPRA thought it appropriate to obtain from the Minister Assisting the Prime Minister for Public Service Matters a more precise particularisation of the inquiry's subject matter.

     It seems not to have occurred to the MPRA that the courses taken by Mr Kelson in seeking advice and registering concern were proper and reasonable ones to take.  What is apparent both during the inquiry and from the Report, is that the MPRA viewed such actions of Mr Kelson as an apparent attempt to frustrate the inquiry.

Findings are Made by the MPRAare Made by the MPRA

     Here I merely note that, while acknowledging the MPRA did not have the advantage of responses from Mr Kelson and Dr McKernan, the Report proceeded to make positive findings on the allegations.  For the purposes of these proceedings it is unnecessary to say anything about those findings beyond what has already been said in these reasons.

The Attacks Made on the Report and on Conduct Leading To ItAttacks Made on the Report and on Conduct Leading To It

     The applicants have proceeded against the respondent on three broad fronts.  The first was by way of order of review under the ADJR Act for an order quashing the respondent's decision (i.e. the making of a Report to the Minister in consequence of the s56 request).  The principal, though not the only, grounds relied upon were that:

     (i)       a breach of the rules of natural justice occurred in connection with the making of that decision (ADJR Act s5(1)(a);

     (ii)      the making of the decision was an improper exercise of the power conferred by the s56 request in pursuance of which it purported to be made (ADJR Act s5(1)(e));  and

     (iii)     a breach of the rules of natural justice occurred in connection with conduct engaged in for the purpose of making the decision (ADJR Act s6(1)(a)).

     The second front, via the Judiciary Act 1903, s39B, pursued claims for a mandamus, prohibition and an injunction - or else for a declaration under The Federal Court Act 1976, s21 as a result of "accrued jurisdiction".  In the events which occurred it was conceded by the applicants that mandamus, prohibition and injunction were no longer appropriate or available remedies.  Nonetheless it was argued,
on the basis of Burgundy Royale Pty Ltd v Westpac Banking Corporation (1987) 18 FCR 212 and Queensland Medical Laboratory v Blewett (1988) 84 ALR 615, that they were still entitled to declaratory relief.

     The third front is, in a sense, a product of a legislative and a locational curiosity.  While the ADJR Act s9 excludes State courts from judicial review of "Commonwealth administration" - a sufficient description for present purposes - that exclusion does not apply to the Supreme Court of the Australian Capital Territory.  It was accepted by counsel for the respondent that, in the circumstances of this case, that Supreme Court would have jurisdiction to grant a declaration:  see Australian Capital Territory (Self-Government) Act 1988, s48A.  In consequence of the Jurisdiction of Courts (Cross-Vesting) Act 1987, s4(2), this Court has conferred on it the jurisdiction of the Territory's Supreme Court.  It was common ground between the parties that I possess this jurisdiction.  Its exercise was pressed on me by the applicants on the general grounds (a) of denial of procedural fairness;  and (b) of want of jurisdiction or authority for the inquiry in fact undertaken.

     Given the concessions as to jurisdiction made here, it is unnecessary for me to consider the alternative route suggested earlier for making a declaration on the basis of Burgundy Royale and the Federal Court Act 1976.

     For obvious reasons the applicants' principal aim is to have the MPRA's Report quashed.  Not surprisingly, the real force of its arguments were directed to the ADJR Act claims.

The ADJR Act ClaimsADJR Act Claims

     Whether relying upon s5 or s6 of this Act, the applicants are obliged to show, as a matter of jurisdiction, that the decision taken by the MPRA - which for practical purposes is the making and communication of the Report - was a decision to which the ADJR Act applied (i.e. was a "reviewable decision").  It was on this initial matter that issue was joined between the parties.

     The respondent's submission was that the Report was not such an "ultimate or operative determination" as would make it a reviewable decision under the ADJR Act:  Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, at 335-339;  Edelsten v Health Insurance Commission (1990) 27 FCR 56 at 66-68;  see also New South Wales Aboriginal Land Council v Aboriginal and Torres Strait Islander Commission, Federal Court of Australia, unreported,  30 August 1995.  It merely informed the Minister and made certain recommendations to him.  The Minister may or may not then, in light of the Report, make a reviewable decision.  Or he may institute further proceedings which in turn may give rise to such a decision.  But unless and until some such decision was made the ADJR Act is
inoperative.  The MPRA's task was one of information gathering and presenting and no more.

     The Report, it was said, should be seen in the same light as that prepared under the Anti-Dumping Authority Act 1988, s9(2) in Vredelco Food Industries Pty Ltd v Anti-Dumping Authority, an unreported decision of Neaves J in the Federal Court of Australia on 22 November 1994.  That report was the product of an inquiry which resulted in findings and recommendations to a minister.  Nonetheless it was found by Neaves J clearly not to be a reviewable decision for want of "the essential features" required by Bond.

     The applicant's submission that the making of the Report was a reviewable decision was made up of the following two elements.  First, unlike in Bond or in Vredelco (given the purpose of the Report there made), this Report was not merely a conclusion reached as a step along the way in a course leading to some ultimate decision:  cf Bond at 337 per Mason C J.  Its making was an end in itself.  If a subsequent decision or action was taken in consequence of it that would be a new -  a separate - matter.  In this sense the report had the "quality of finality" required of a reviewable decision:  cf Edelsten, supra, at 69.  Secondly, it was a decision having operative effect in that it "can of itself have [an] effect on a person":  cf Ross v Costigan (1982) 59 FLR 184 at 197.  The relevant effect was the risk the Report posed to the reputations of the applicants.  Reliance here was placed upon decisions of the High Court affirming that "reputation is an interest attracting the protection of the rules of natural justice":  Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 at 578.  I am in broad agreement with the conclusion pressed by the applicants.

     It is not, in my view, possible to say that because a Report is made in consequence of a request under the Merit Protection (Australian Government Employees) Act 1984, s56, it is or is not for that reason a "reviewable decision" for ADJR Act purposes.  Depending upon the terms of the request made, its subject matter, the nature of the rights and interests it is capable of affecting, and the relationship of the request to other decisions or actions in train or in contemplation, a particular Report may be capable of having any one of the three characters given to decisions by Northrop and Lockhart J J in the Full Court of this Court in Edelsten, at 68:

     Some decisions will have real impact upon a person's rights, privileges or obligations;  some will have no such impact, whilst others are mere stepping stones which may lead ultimately to the making of a decision which does affect the person's position.

     The nature of the Minister's request in this case was, at the least, to establish the possible existence of workplace harassment at the AWM.  If that phenomenon was found and if identifiable individuals were found to be its perpetrators (and were so reported upon) that, without more in my view, would in this instance constitute a reviewable decision - irrespective of whether the Minister considered it necessary or desirable to initiate consequential steps, whether against those individuals or otherwise;  and irrespective of whether the MPRA in its Report recommended consequential measures.   My reasons for this conclusion are these.

     First, the legislative scheme of the Act to which s56 belongs does not itself create a larger decision making process in which it locates a s56 report as merely a part or step.

     Secondly, the actual terms of the Minister's request and the context of its making do not suggest in any way that the findings made in relation to the subject matter to be inquired into, were to be treated as other than substantive determinations.

     There is, in other words, nothing in the legislative scheme or in the actual request made that compels the conclusion that to treat the Report as a discrete decision would itself result in "a fragmentation" of such process of administrative decision-making as may have been envisaged for the matter to which the request related:  cf Bond's case at 337 per Mason CJ.  The Report can properly be said to stand alone as a separate and discrete decision.  That subsequent decisions may be taken in consequence of it, does not rob it of this character.

     Thirdly, and I here am in complete agreement with the applicant's submission, the Report has operative effect in that "of itself" - cf the comments of Mason C J on these words in Bond at 338 - it can have an effect on interests of the applicants that are protected by the law.  This effect alone would not result in the Report being a reviewable decision:  cf the personal findings against Mr Bond in Bond's case.  It is the combination of the qualities of finality and of substantive determination which is necessary to produce that result:  see Edelsten, at 66.

     Fourthly, notwithstanding that the Report has been kept confidential to date, the "risk to reputation" - cf Ainsworth v Criminal Justice Commission, at 585 per Brennan J - it poses, begins at the moment the Report is submitted to the minister.  This is because the reputation at risk is in part at least that of public sector manager, while the recipient of the Report is a person who can properly be taken to have a direct interest in ascertaining the accuracy or otherwise of that reputation.  He is the Minister Assisting the Prime Minister for Public Service Matters.

     Finally, even if the Report is kept relatively confidential - and the minister apparently is under no formal obligation so to keep it - it may nonetheless constitute a factor in subsequent decisions taken in relation either to the applicants individually or to the AWM by those who have been made privy to its contents.  Such subsequent decisions need not necessarily be linked explicitly to the Report in the sense of being based upon, or of growing out of, it.  It thus has the independent capacity to be the instrument of silent and/or collateral injurious affection to the applicants.  That it possesses this quality when considered in the light of the matters to which I have already referred serves to reinforce the conclusion that it satisfies the Bond test.

Denial of Natural Justiceof Natural Justice

     An important function of the MPRA is to maintain particular values, and notably fair dealing, in decisions made and actions taken in relation to Commonwealth employees.  For this reason when it takes such decisions or actions itself, it quite properly can be expected to be an exemplar of those values.  This is not to say that its actions and decisions should be judged by standards higher than those exacted from others.  Rather the MPRA should be, and should be seen to be, scrupulous in adhering to those standards.  In the circumstances of this case it has fallen short of this.

     I have already highlighted the deficiencies of the particular definition of "workplace harassment" adopted by the MPRA.  I have indicated that the applicants had, and were given, reasonable grounds for concern about the scope of the inquiry and about the allegations made against them - these two matters interact in this case.  I have indicated that in my view the courses taken by Mr Kelson in seeking advice from the Attorney-General's Department and the Public Service Commissioner, and of registering concern with his portfolio minister, were proper and reasonable ones to take.  I have found that it was reasonable and probably prudent for the applicants not to make responses to the allegations made against them.  That finding is based both on their quite understandable problem with the MPRA's definition and on the vices in the form in which the allegations were made, lack of particularisation being one of these.  Finally I note that the MPRA, having refused to provide the applicants with further particulars of allegations, nonetheless proceeded to make findings on the allegations.

     At the initiation of the inquiry the MPRA informed Mr Kelson, as I have also noted, that where adverse material was provided against a person, it would be brought to that person's attention.  Furthermore that person would also be given an opportunity to comment on the substance of that material and any recommendations that may be made that may affect them.  This dual commitment was reiterated subsequently.  It is not clear when or why the MPRA determined that the latter opportunity (i.e. to comment on recommendations that may affect) should be withdrawn.  Given the stand-off that had developed between the applicants and the MPRA by the end of the inquiry, whether or not they had any actual expectation they would be given this opportunity is not a matter in evidence before me.  Whether they were
entitled to expect they would be given it is another matter which I need not enter upon here.

     It was accepted by the MPRA from the outset of the inquiry that the inquiry undertaken attracted an obligation of procedural fairness - or as the MPRA put it - the rules of natural justice.  This is an inescapable conclusion.

     I did not understand the parties to diverge in any significant way in their understanding of the considerations which shape the content of this obligation in particular circumstances:  see e.g. Kioa v West (1985) 159 CLR 550 at 585 per Mason CJ;  New South Wales v Canellis (1994) 124 ALR 513 at 523;  Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 127 ALR 699 at 714.

     For present purposes it is sufficient to put the matter in the form advanced by the respondent in justification of its actions and this because that form is the most favourable to the respondent.  It was submitted that the ultimate issue was whether the applicants were given a fair opportunity to comment on the material taken into account adversely to them in the findings actually made in the Report.  This submission was based on observations in Romeo v Asher (1991) 29 FCR 343 at 349-350, the appropriateness of which to the circumstances of the MPRA's inquiry was assumed.  The substance of the relevant allegations having been put to the applicants, it was submitted that procedural fairness required no more in the circumstances.  It was suggested, furthermore, that the applicants and their advisers were misconceived in treating this inquiry as one in which the provision of detailed particulars such as they sought, were appropriate.  Reliance in this was placed on the judgment of Wilcox J in Bond v Australian Broadcasting Tribunal (1988) 19 FCR 494 at 508-509.

     The applicants' submission that they were not given such an opportunity was based primarily upon the form of the allegations made - their vagueness, imprecision and lack of specificity - and upon the late emergence of the MPRA's definition.

     It is unnecessary to revisit the allegations here because of the findings I have already made.  It is undeniable that the applicants were given an opportunity to comment on the allegations.  It is equally undeniable that what was being asked of them was unfair.  In the context of an inquiry the legitimacy of whose scope they had reason to question, they were confronted at the eleventh hour with an exceptionable definition of workplace harassment and with allegations some number of which could not reasonably be expected to have been answered either because of the form in which they were advanced or because their connection to workplace harassment was not at all self-evident.

     To expect the applicants to have responded to the allegations at the risk of having the consequences of their failure to do so visited upon them would, in these circumstances, be to impose procedural oppression on them.  The opportunity they were being asked to avail of was not itself a proper manifestation of procedural fairness on the MPRA's part.  I reiterate here that the MPRA put the applicants in a position in which they should not have been placed.

     Accordingly I find (i) that in connection with the making of the Report there has been a breach of the rules of natural justice, and (ii) that in the manner and form in which the allegations were put to the applicants, conduct satisfying the ADJR Act s6(1)(a) has been engaged in.

Inquiring Without Jurisdiction or AuthorityWithout Jurisdiction or Authority

     I have found earlier in these reasons that, whether or not misled by its own definition, by its s4 object, or by a combination of these (and other) reasons, the MPRA's inquiry went, and was rightly seen by the applicants to have gone, well beyond the mandate given by the s56 request.

     The question to be decided is whether this failure to adhere to the terms of reference invalidates the Report.  The applicants' submission was that in answering this question in the case of an inquiry such as this, the proper perspective to adopt is that of persons caught up in, and likely to be affected by, the inquiry process.  Such persons, it was said, are entitled to know what the scope of the inquiry is, and are entitled to complain if it is exceeded.  By scope I understood the submission to be referring to the subject matter of the inquiry and not to the range of decisions or actions which the search for that subject matter could properly lead the inquiry to examine:  cf Ross v Costigan (1982) 59 FLR 184 at 200ff.  The reason given for this entitlement is that a person implicated in the inquiry is then able to say in relation to an allegation made against him or her:  "I do [or do not] have to answer this because it is [or is not] relevant to the inquiry".  Analogical support for regarding the question of scope as one of validity was sought in case law on jurisdictional facts, for example, Queensland v Wyvill (1989) 25 FCR 512.

     The respondent, in contrast, submitted that the proper perspective to take was that of the Minister.  If the MPRA had gone beyond what he considered he asked it to do, then he was at perfect liberty to ignore the Report in its entirety or to ignore those parts of the Report he considered went beyond his understanding of the terms of reference.  The submission in turn sought its support in case law on the "somewhat elusive" mandatory-directory distinction:  e.g. Yates Security Services Pty Ltd v Keating (1990) 25 FCR 1 at 24 ff;  Formosa v Secretary, Department of Social Security (1993) 46 FCR 117 at 122.  The particular point made in this was that the inquiry was an infra-Executive matter and if there was ultra vires it
should be left to the Executive not to the courts to correct as it thought fit.

     Whatever attraction may lie in the analogy suggested by the respondent in cases where the direction in question does not impact upon interests other than the interests of the Executive government itself, here one must take into account the interests of the applicants.

     The s56 request gave the MPRA authority to evaluate the behaviour of AWM officers (including the applicants) for a particular purpose - i.e. to determine whether that behaviour constituted workplace harassment.  To that extent it was given the capacity to diminish the standing and repute of any individual officer if, and to the extent that, a positive finding was made against him or her.  But the reason for that diminution was to be because that officer had been found to have engaged in workplace harassment.  The MPRA had no justification possibly to diminish reputations for reasons unrelated to workplace harassment.

     It is not appropriate for this Court to disregard that possibility - and the scope it thus would give unfairly to prejudice individuals - simply because the inquiry occurs within the four walls of the Executive arm of government.  I should emphasise that I am limiting my comments to acting without authority in a way which could put the reputation of a person or persons at risk.  Basic fairness to public officials requires that this should not be a risk to which they are exposed simply because, for whatever reasons, others exercising public power misunderstand their own authority.  Here, it clearly was a risk to which the applicants were exposed because of the unauthorised areas into which the MPRA presumed to wander.

     Accordingly I find that the making of this Report was an improper exercise of the power conferred on the MPRA by the s56 request to report to the Minister.

Good AdministrationAdministration

     The s56 request limited the subject matter into which the MPRA could inquire.  If there was matter beyond this which appeared to warrant inquiry - and I do not and cannot express any opinion on that - there was in the circumstances only one available source of authority for investigating that matter.  That was the Minister Assisting the Prime Minister for Public Service Matters.  It was the Minister and only the Minister who could give that jurisdiction to the MPRA.

     Lest there by any misapprehension about my role in this, I should add that it is not part of the function of this Court at all to exercise some form of dispensing power in the matter.  Like the MPRA and the applicants, I must take the s56 request as I find it.  There are clear rule of law reasons why this should be so.  Public officials, no matter how well intentioned, cannot be permitted to trespass upon the rights and interests of others save where they have lawful authority to do so.

     This brings me to a matter which cannot pass without comment. 

     A shared concern both of courts and of public administrators within their particular spheres is with securing "good administration".  While the respective emphases in, and understandings of, this may differ on occasion, the concern itself is a manifestly desirable and proper one.  In the law, securing good administration can properly be said to be an organising idea for a group of principles which, in exacting procedural fairness, are designed to maintain public confidence in the integrity of administrative government:  see e.g. Attorney-General of Hong Kong v Ng Yuen Shiu [1983] 2 AC 629;  Consolidated Press Holding Ltd v Federal Commissioner of Taxation (1995) 129 ALR 443 at 453.

     In Commonwealth administration the concern has had a somewhat different focus.  The reforms of the last decade and more - see generally The Australian Public Service Reformed, December 1992, AGPS - have seen an accentuated emphasis on service delivery, performance and results.  This emphasis has its own, acknowledged risks.  As was said in Accountability in the Commonwealth Public Sector, June 1993, AGPS:

         

     In moving the public servant's attention to focusing more on results, care has been taken to balance this against the traditional concerns for probity and due process.  Due process, fair dealing and the clear requirement to work within the law continue to be mandatory, but are not sufficient in themselves as a focal point for public servants. (p15)

The present application is perhaps a reminder of the need for the care noted.

     But more directly related to the theme of good administration in this application are matters arising from the context and course of the inquiry challenged in this Court.  Clearly the inquiry was one of immediate and proper personal concern to the applicants because of its potential impact upon their interests.  But it also had another dimension to it.  It was set within the administrative system itself.  It was infra-governmental in character.  Yet the difficulties to which it gave rise and which were reasonably apparent from early in the inquiry seem only able to have been settled by resort to the courts.  It is to this that I wish to draw attention.

     Given the advices of officers of the Attorney-General's Department and the opinion expressed by the Public Service Commissioner, the conclusions reached in this Court cannot come as a complete surprise to anyone within the administrative system who was familiar with these matters.  I cannot, and do not comment, on the extent to which these and other public officials (including if necessary ministers) may or should have been able to assist in the early resolution of the concerns raised by the applicants.  I do nonetheless invite attention to this in the hope that, by so doing, proceedings brought for the reasons that these have been brought will not be found necessary in the future.

A DeclarationDeclaration

     If I am incorrect in holding that the making of the Report constituted a reviewable decision for the purposes of the ADJR Act, the issue will arise as to whether declaratory relief is appropriate.  As I have noted earlier, it has been conceded that I have jurisdiction to make a declaration in these proceedings.  That jurisdiction is not confined to granting relief in respect of ultimate decisions:  see Australian Broadcasting Tribunal v Bond, at 336 per Mason C J;  The Hon Mr Justice W M C Gummow, "Reflections on the Current Operation of the ADJR Act" (1991) 20 Fed L Rev 128 at 130.

     Given the findings I have made that there has been a denial of procedural fairness and that the MPRA has acted without jurisdiction or authority, it is appropriate that declaratory orders are made.

The Relief to be GrantedRelief to be Granted

     At the close of his submissions, and contrary to his primary submission, counsel for the respondent invited me to refuse at least declaratory relief for such breach of natural justice as I may find to have occurred.  The basis for this was that there was no evidence that the reputations of the applicants have suffered in consequence of the Report, it having been kept confidential to date.  This alleged difference was used to distinguish the present matter from Ainsworth v Criminal Justice Commission, above.

     I can accept neither the submission nor the basis of it.  At the very least the applicants' reputations were at risk as a result of the manner in which the inquiry was conducted and the Report made.  That of itself should ordinarily be sufficient to justify the grant of relief:  see Ainsworth, above at 585 per Brennan J.  But as I have already noted that risk has been magnified immeasurably because of the role and function of the particular minister requesting the inquiry and receiving the Report.

     Accordingly, I make

          (i)  an order under the ADJR Act s16(1)(a) that the decision of the respondent reporting to the Minister Assisting the Prime Minister for Public Service Matters and setting out the results of the inquiry requested by the Minister of 16 August 1994, be quashed;  and

          (ii)declarations that -

              (a)  the respondent acted without authority in conducting the actual inquiry she
undertook into the allegations made against the applicants;  and

              (b)  the respondent denied the applicants natural justice in putting the allegations to the applicants in the manner and in the form which she did, and in finalising her Report without providing them with a fair opportunity to respond to such of the allegations made against them as fell within the scope of the inquiry she was authorised to undertake.

                                  I certify that this and the preceding 62 pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Finn.

                                           Associate

                                  Dated:  6 October 1995

Counsel for the applicant    :  Erskine

Solicitors for the applicant:  Crossin Barker Gossling

Counsel for the respondent   :  Gageler

Solicitors for the respondent     :  Phillips Fox

Date of hearing              :  8 August 1995

Date of judgment             :  6 October 1995